Sarah D. Pinsonnault
Articles du même auteur
08 Avr 2015

Suspending Class Action Proceedings Due to Lis Pendens

Par Sarah D. Pinsonnault, avocate

By Sarah D. Pinsonnault

In Parker c. Apotex Inc., 2015 QCCS 1210, the Petitioners
had filed, on the same day, similar motions before both the Superior Court of
Quebec and the Court of Queen’s Bench of Alberta seeking the certification of a
class action for all persons in Canada who purchased a generic birth control
produced, manufactured, marketed, and distributed by the Respondents, Laboratorios
Léon Farma (“Laboratorios”) and Apotex. Relying on article 3137 of the Civil Code of Québec (lis pendens), Laboratorios
presented a motion requesting that the present matter be stayed until judgment
is rendered on the certification in Alberta, arguing that the latter largely
duplicates the proceedings brought against the Respondents in Quebec.

The Court began by listing the conditions
for lis pendens found at article 3137
CCQ: there must be identity of the same parties, both recourses are based on
the same facts and have the same object. Then, in using the discretion that article
3137 CCQ confers upon the Court, it decided to suspend the duplicative class
action proceedings before the Superior Court of Quebec:

“[7]         At this stage, the three identities
are present. There is clearly identity of the material facts and of the object.
Both recourses allege the same facts and ask for the same type of damages: compensatory,
moral, and punitive or exemplary damages. Moreover, many of the allegations
made and conclusions sought in the Quebec Class Action are very similar if not
identical to the ones in the Alberta Class Action 


[8]         In addition, there is identity of the
parties considering both recourses seek to represent the same members. The
Supreme Court of Canada stated that legal identity of the parties, as opposed
to physical identity, is what is required at the certification stage.

[9]         Therefore, the Court concludes there
is apparent lis pendens between the Quebec Class Action and the Alberta Class

[10]      Using its discretion found in Article
3137 C.C.Q., the Court considers it to be in the best interest of the Quebec
members to suspend the Quebec Class Action for the following reasons:

− The hearing on certification of
the Alberta Class Action is scheduled peremptorily for a period of 4 days, from
June 15 to 18, 2015;

− As transpires from the
transcript of a management conference in the Alberta Class Action held on
February 12, 2015, the Court of Queen’s Bench intends to deal with this matter

− Given the great similarity
between the two recourses, the parties should not invest time and costs in both

− The principle of proportionality
requires that the parties deal with only one recourse at this stage;

− The Alberta Class Action may
result in a decision, which could be recognized in Quebec given the apparent
lis pendens;

− The Quebec members will not
suffer any prejudice since the Quebec Action is not dismissed but stayed

[11]      Finally, it is worth noting that
Petitioners’ lawyer did not contest the Motion considering the representations
of Laboratorios’ lawyers to proceed with the certification of a national class
before the Queen’s Bench of Alberta. In this context, no costs will be awarded.”
(references omitted)

To read this decision in its
entirety, click here

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